Moana v Police
[2022] NZHC 1392
•14 June 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-485-18
[2022] NZHC 1392
BETWEEN ANTHONY HURUMANU MOANA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 June 2022 Counsel:
E J M Smith for Appellant
R G Buckman for Respondent
Judgment:
14 June 2022
JUDGMENT OF SIMON FRANCE J
[1] Mr Moana appeals the refusal of the District Court to discharge him without conviction on a charge of domestic assault. If unsuccessful in that, a sentence of nine months’ supervision is challenged as being excessive and unnecessary. Separately, the imposition of a protection order in favour of Mr Moana’s victim is also appealed.1
Facts
[2] The defendant and the victim, who both have intellectual disabilities, had both been drinking. A disagreement occurred. Mr Moana struck the victim several times in the face, causing her to fall against a doorframe, and then onto a mattress. The victim suffered black eyes, swelling to her cheeks, and bruising in her face.
1 New Zealand Police v Moana [2021] NZDC 5990.
MOANA v NEW ZEALAND POLICE [2022] NZHC 1392 [14 June 2022]
Application for a discharge
[3] The District Court assessed the offending as medium to high level gravity because it was serious inter-partner instrumental violence.2 This assessment was based on a summary of facts prepared for a sentencing indication. It was modified in an agreed summary for sentencing. The Judge did not alter his assessment notwithstanding the modified facts (referring again, it seems, to the old summary) or the existence of enhanced rehabilitation endeavours. The consequences of conviction were assessed as vague and not out of all proportion to the gravity of the offending.
[4] On appeal it is submitted that correctly assessed, the offending would be assessed of low gravity. The Crown concedes an assessment lower than that of the District Court is available, but submits low is not.
[5] The approach to a discharge application is well known and need not be set out in detail.3 The first step is to identify the gravity of the offending. This entails consideration of all relevant sentencing factors relating both to the offending and the offender. Next, the consequences both direct and indirect are to be identified. Third, an evaluation of whether those consequences would be out of all proportion to the gravity of the offence is required. If there is such a lack of proportionality, the Court may grant a discharge without conviction but has a discretion not to do so in the particular case. On appeal the matter proceeds by way of rehearing. Here the judgment under appeal appears to have regard to an incorrect summary, and has not engaged in a detailed assessment of gravity. These matters support a fresh assessment.
(a) Gravity of the offending
[6] I consider the assault to be a moderately serious example of its type. No weapons were used and it was of a short duration. However, there were punches thrown at the head, injuries caused and a hospital visit required, albeit again not of any duration. It would have been a frightening and traumatic experience.
2 At [2].
3 Z v R [2012] NZCA 599, [2012] NZAR 142; R v Smith [2017] NZCA 530; and R v Hughes [2008]
NZCA 546, [2009] 3 NZLR 222.
[7] Mr Moana is a 31-year-old Māori man with an established intellectual disability. Experts label it as being within the mild intellectual disability range. He has no previous convictions nor other involvement with enforcement authorities.
[8] Mr Moana was born very prematurely and has consistently been slow to reach developmental milestones. He required education assistance throughout his schooling due to learning difficulties. He remained at school until he was 18 but experienced it as a lonely environment in which he was often bullied.
[9] Mr Moana went to Christchurch to live with his mother when he left school However, he and his family were then badly affected by the earthquake, their house being in an area of severe liquefaction. This was a traumatic experience for which counselling was provided. Consequently the family returned to Wellington, which seems not to have been a happy change for Mr Moana. He lives a socially isolated life but with good support and friendship from his family. Since the offending he has been receiving assistance from disability support services.
[10] Mr Moana has been in two relationships. The first lasted five years during which time he and his partner had two children. The children live with their mother in another city. He has contact but it is infrequent. He met the present victim in 2020. That relationship has ended with the assault.
[11] Mr Moana has from the outset accepted responsibility. He is not a drug user and was an infrequent user of alcohol. On the day in question he had more than he had ever drunk. He reports he has not touched alcohol since and does not intend to.
[12] Concerning remorse, Mr Moana wrote a letter of apology. It reflects his basic writing skills and is obviously genuine. It concludes:
I feel bad what I done to X and I wish I had never drunk that day to be honest.
The psychologist who assessed Mr Moana’s fitness to stand trial notes that during the interview, when the offending arose, Mr Moana indicated a wish to apologise and a commitment never to act like that again. The psychologist records Mr Moana was then overwhelmed for some minutes before he could regain composure.
[13] The pre-sentence report writer likewise recognises Mr Moana’s genuine remorse. The sentence of supervision to assist Mr Moana was the report’s recommendation.
[14] As noted, since the offending Mr Moana has been assisted by CCS Disability Action. It helped arrange one-on-one counselling from which a positive report has emerged, with the counsellor giving the assessment that it seemed a one-off episode unlikely to be repeated. The counsellor indicates he is available to Mr Moana if he should find himself struggling to process a situation.
[15] A note from CCS Disability Action also reports on Mr Moana’s remorse and other efforts. He has attended community work and is attending an Earthlink employment wellness program to help him develop further skills to enter the workforce.
[16] There are plainly many positives concerning Mr Moana that require an adjustment to an initial offending assessment of moderately serious. He is a 31-year- old Māori man who has had to cope all his life with the disadvantages of his intellectual disability. He reached the age of 30 without ever causing harm or otherwise coming to the attention of authorities. He has had a supportive mother and siblings but there have been significant traumas along the way, and his life skills have not made it easy to be part of the community.
[17] The immediate cause of the current offending is identifiable and being addressed. The remorse is genuine as is his commitment to avoid a repetition. His was an early plea. It is a powerful collection of mitigating factors.
[18] Applying all these factors I consider the correct assessment is one of low gravity.
Consequences
[19] There are no identifiable direct and immediate consequences of a conviction, but the potential impact is readily identifiable. Mr Moana’s profile is one where obtaining work will be difficult and would reflect a sustained endeavour on his part to
overcome some hurdles not in any way of his own making. I have little doubt a conviction for assault would probably make these hurdles insurmountable.
Balance exercise
[20] Mr Moana has much to deal with in life. He has for almost all of it done well. He wants to do so again and is genuinely remorseful for his lapse. The form of the lapse can never be condoned nor minimised. Nor should the interests of the victim and her experiences be forgotten.
[21] In this regard the Court has two victim impact statements – from the victim and from her mother. The latter was herself greatly affected by seeing her daughter’s injuries and remains so today. The victim herself filed a statement initially and then an updated one. In that she observed:
I feel neutral about what happened … and just want to move on.
I do not overlook that the victim herself has a disability and the impressions of her mother merit attention, but the Court has no basis on which to not accept that which the victim says.4
[22] Returning to the balancing exercise, I am satisfied that to burden Mr Moana’s prospects with a conviction for assault would be out of all proportion as a response to offending assessed in the overall context as of low gravity.
[23] The appeal will accordingly be allowed and the conviction quashed. The sentence of nine months’ supervision is also quashed.
Protection order
[24] The power to make a protection order is found in s 123B of the Sentencing Act 2002. The Court must be satisfied it is necessary for the protection of the victim. It has been noted the role of an order is not only to prevent future violence but to assist
4 There is a suggestion in the statements of the possibility of some hearing loss. The Court, however, is required to proceed on the agreed statement of facts.
a victim to actually feel safe.5 There must be a reasonable subjective fear of violence on the part of the applicant seeking the order.6
[25] It is submitted that in the present case the evidence does not establish the victim feels unsafe, nor that such a sense, if it existed, would be reasonable. The relationship is at an end. There has been no contact between the two since the incident, and there is no expectation of future contact.
[26] In my view, this submission too much freezes the moment in time. Looked at more broadly, the incident was a product of jealousy and alcohol, and Mr Moana acknowledged ongoing feelings albeit accepting the relationship was at an end. There is not a full statement from the victim, herself having a disability, but she did sign an application for the order. A Court may infer from that the victim feels a need for it. I do not consider the Court erred in making an order – it gives the complainant an extra layer of protection which aids recovery, and it makes plain to Mr Moana that he needs to move on. That he might presently accept that reality is a positive thing, but so is reinforcement.
[27]The appeal against the protection order is dismissed.
Conclusion
[28] The appeal against conviction and sentence is allowed, and both are quashed. Mr Moana is discharged without conviction.
[29]The appeal against the making of a protection order is dismissed.
Simon France J
Solicitors:
Crown Solicitor, Wellington for Respondent
5 The correct approach is set out in SN v MN ]2017] NZCA 289 at [22]–[24].
6 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [43] and [77].